Exhibit 10.8.1
AMENDED AND RESTATED ADMISSION FEE
ESCROW AGREEMENT - PHASE I
(THE CHESTNUT PARTNERSHIP)
THIS AMENDED AND RESTATED ADMISSION FEE ESCROW AGREEMENT-PHASE I
("Agreement") is made this 18th day of July, 1996, by and between THE CHESTNUT
PARTNERSHIP, a Maryland general partnership (the "Partnership"), and THE FIRST
NATIONAL BANK OF MARYLAND, a National Banking Association (the "Escrow Agent").
WHEREAS, the Partnership is the owner of a life-care retirement
community known as "Blakehurst," located in Baltimore County, Maryland, and is a
"provider" within the meaning of Section 7 of Article 70B of the Annotated Code
of Maryland.
WHEREAS, in order to protect the residents of Blakehurst - Phase I (the
"Resident") the parties have entered into this Agreement setting forth the terms
and provisions under which certain deposits will be made with the Escrow Agent.
WHEREAS, this Agreement amends and restates the Admission Fee Escrow
Agreement of the Partnership for Blakehurst date January 19, 1990 between the
Partnership and American Security Bank, N.A., the Previous Escrow Agent (the
"Prior Agreement") relating to the escrowing of deposits.
WHEREAS, the Partnership and Escrow Agent wish by this Agreement to
supersede and replace the Prior Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties agree as follows:
1. All deposits held by the Previous Escrow Agent pursuant to the Prior
Agreement shall become subject to the terms of this Agreement.
2. The Partnership expects to receive a deposit of a portion of an
entrance fee (the "Deposit") from each prospective resident of Blakehurst Phase
I at the time of execution of a Residency Agreement. The Partnership will accept
such Deposit in the form of a check from a Resident made payable to the Escrow
Agent, and will deposit the same in an escrow account maintained by the Escrow
Agent (the "Escrow Account") as soon as practicable in the ordinary course of
business.
3. The Escrow Agent shall maintain each Deposit described in Section 2
of this Agreement in the name of the Resident in the Escrow Account separate and
apart from any funds of the Partnership.
4. The Partnership represents to the Escrow Agent that it will furnish
to each Resident of Blakehurst - Phase I, a written receipt of the Deposit made
by the Resident in the form of a fully executed Residency Agreement signed by
the Partnership and the Resident.
5. The Escrow Agent agrees to the following: (a) upon request of the
Partnership, to issue a statement indicating the status of the Escrow Account
maintained by the Escrow Agent pursuant to this Agreement; (b) upon request of a
Resident, to issue a statement indicating the status of such Resident's balance
in the Escrow Account maintained by the Escrow Agent pursuant to this Agreement;
and (c) to furnish the Partnership with a monthly statement indicating the
amount of any disbursements from or deposits to the Escrow Account during the
monthly period covered by the statement.
6. If the Escrow Agent receives written notice from the Partnership of
an election by the Resident to rescind his or her obligations under the
Residency Agreement, the Escrow Agent shall return such Deposit directly to the
Resident (or the estate of the Resident, if the Resident is deceased), in the
amount specified by the Partnership and in accordance with the Partnership's
written instruction. The Escrow Agent shall promptly refer to the Partnership
any and all communications or requests for refunds received directly from
Residents.
7. If the Resident does not elect to rescind his or her obligations
under the Residency Agreement, the Deposit shall thereafter continue to be held
by the Escrow Agent, together with like Deposits from other Residents, subject
to the following terms:
7.1 Upon receipt by the Escrow Agent of written notice from
the Partnership, but in any event no less often than monthly, the
Escrow Agent shall forthwith release to the Partnership all income and
gains from investment activity;
7.2 Upon receipt by the Escrow Agent of written notice from
the Partnership, any special costs incurred and all processing fees
earned by the Partnership as set forth in the Residency Agreement shall
be distributed to the Partnership;
7.3 Upon receipt by the Escrow Agent of written notice from
the Partnership, release to the Partnership the Deposits deposited with
the Escrow Agent pursuant to this Agreement, together with any earnings
thereon; and
7.4 The Escrow Agent shall invest the funds held by it from
time to time in such obligations of the United States or its agencies
(or in the shares of a registered investment company, including those
of the Escrow Agent or its affiliates, which holds a portfolio of such
securities), or such certificates of deposit, savings accounts, or
similar savings or investment securities of the Escrow Agent as the
Partnership may direct in writing. The interest and dividends earned on
the Deposits shall be for the account of the Partnership.
8. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no implied duties or obligations shall be
inferred or otherwise imposed upon or against the Escrow Agent.
8.1 The Escrow Agent may act in reliance upon any writing or
instrument under signature which it, in good faith, believes to be
genuine, may assume the validity and accuracy of any statement or
assertion contained in any such writing or instrument, and may assume
that any person purporting to give any writing, notice, advice, or
instruction in connection with the provisions hereof has been duly
authorized to do so.
8.2 The Escrow Agent shall not be liable in any manner for the
sufficiency or correctness as to form or manner of execution or
validity of any instrument deposited with or delivered to the Escrow
Agent hereunder, nor as to the identity, authority, or right of any
person executing the same.
8.3 The duties of the Escrow Agent hereunder shall be limited
to the safekeeping of the Deposits and other money, instruments, or
other documents received by it as Escrow Agent, for disposition of the
same in accordance with the written instruction accepted by it as
Escrow Agent, and the reporting requirements specified under Section 5
hereof.
9. Except as otherwise provided herein, the Partnership hereby agrees
to indemnify the Escrow Agent and hold it harmless from any and all claims,
liabilities or losses, or any other expense, fees or charges of any character or
nature, which it may incur or with which it may be threatened by reason of its
acting as Escrow Agent under this Agreement, unless caused by its willful
misconduct or negligence; and in connection therewith, to indemnify the Escrow
Agent against any and all expenses, including attorneys' fees and the cost of
defending any action, suit, or proceeding or resisting any claim.
10. The Escrow Agent may resign or be terminated upon thirty (30) days'
written notice thereof to the other party, subject to the appointment of its
successor by the Partnership within such thirty (30) day period. If a successor
escrow agent is not appointed by the Partnership within the thirty (30) day
period, the Escrow Agent may petition the court to appoint a successor. Upon the
appointment of such successor escrow agent, the Escrow Agent agrees to delivery
to such successor escrow agent all funds and documents in its possession within
thirty (30) days from the date of notice of termination or resignation, or (5)
five business days from the date of appointment of the successor escrow agent,
whichever shall later occur.
11. In consideration of the services rendered by the Escrow Agent
hereunder, the Partnership agrees to pay to the Escrow Agent its usual and
customary fee for services as Escrow Agent, including reimbursement for any
expenses, disbursements and advances, and reasonable attorneys fees, incurred by
it in connection with the carrying out of its duties hereunder.
12. Any notices or other communications hereunder shall be in writing
and unless otherwise specifically provided, shall be deemed effective when
delivered personally or when received by mail, first class postage prepaid,
addressed as follows:
12.1 If addressed to the Escrow Agent:
The First National Bank of Maryland
Corporate Trust Department
P.O. Box 1596, Banc 101-591
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxx, Corporate Trust Executive
12.2 If addressed to the Partnership:
The Chestnut Partnership
c/o Chestnut Village, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Attn: President
13. This Agreement constitutes the entire understanding and agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The Partnership
may amend this Agreement at any time upon 30 days' prior written notice thereof
to the Escrow Agent, provided, however, no amendment shall (i) diminish or
otherwise affect the rights and protections of the Escrow Agent (ii) require any
additional duties of the Escrow Agent, without its written consent.
14. This Agreement shall be construed according to the laws of the State of
Maryland.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Admission Fee Escrow Agreement-Phase I effective as of the date first
hereinabove set forth.
THE CHESTNUT PARTNERSHIP THE FIRST NATIONAL BANK OF
MARYLAND
Blakehurst Joint Venture, by
Chestnut Village, Inc., a General Partner
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
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West Joppa Road Limited Partnership,
a General Partner
By: /s/ X.X. Xxxxxx
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The Chestnut Real Estate Partnership, by
Blakehurst Joint Venture, a General Partner
By: /s/ Xxxxxx X. Xxxx
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